Markandey Katju
Former Judge, Supreme Court of India; Former Chairman, Press Council of India

THE BLOG

Demanding Azadi For Kashmir Is Not Sedition, But It Is Certainly Stupid

23/08/2016 4:12 PM IST
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Updated
24/08/2016 8:35 AM IST

Cathal McNaughton / Reuters

In February this year, some JNU students were charged with sedition under Section 124A of the Indian Penal Code for chanting slogans in favour of freedom (Azadi) for Kashmir. A few months later, this August, Amnesty International also faced the same charges, once again because "anti-India" slogans were allegedly raised at an event organized by the NGO.

In this connection I wish to make two points.

1. Freedom of speech is a constitutional right

Article 19(1)(a) of the Indian Constitution guarantees freedom of speech to all citizens, though this is subject to reasonable restrictions mentioned in Article 19(2).

Although I disapprove of it, in my opinion shouting slogans for Azadi per se is no crime. So many people in India often shout such slogans, e.g. Khalistanis, Kashmiris, Nagas, Mizos, etc. In Scotland many people demand separation from England, and many people in French-speaking Quebec demand freedom from the rest of Canada.

In a democracy people should be allowed to let out steam, and the govt. should ignore many things, and not overreact.

"....The mere teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the otherwise ambiguous theoretical material regarding Communist Party teaching."

"A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute,...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest....There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

Justice Holmes of the US Supreme Court in his dissenting judgment in that case wrote :

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wish to sweep away all opposition.

But when men have realized that time has upset many fighting faiths, they may come to believe that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the government that the 1st Amendment left the common law as to seditious libel in force. History seems to me against the notion."

In Gitlow vs. New York, 268 U.S. 652 (1925), the appellant, a member of the left wing of the Socialist Party, had been convicted for printing and distributing copies of the Left Wing Manifesto which called for "overthrow of the state by class action of the proletariat in any form, seizure of power and suppression of the bourgeoisie." In his dissenting judgment in that case Justice Holmes said:

"It is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared Gitlow's views. It is said that the manifesto is more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and if believed is acted on, unless some other belief outweighs it.--Whatever may be thought of the discourse before us, it had no chance of starting a present conflagration.

If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears."

"In days of great tension when feelings run high, it is a temptation to take short cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within."

"Freedom of speech lies at the foundation of democracy, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible."

"One sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions."

In 1954, Ram Manohar Lohia, then general secretary of the Praja Socialist Party was arrested by the UP government for leading protests around a government policy that had increased irrigation rates for water supplied for canals to cultivators. He was prosecuted under the UP Special Powers Act 1942, which criminalized instigating people to refuse to pay taxes. Supreme Court ruled in favour of Lohia, holding that the state government's action was in violation of Article 19(1)(a), vide Supdt. Central Prison vs. Ram Manohar Lohia, AIR 1960 S.C.633. The Court held that for an action to be restricted under Article 19(2), there needs to be a proximate and reasonable connection or nexus between the speech in question and public order.

The Court said:

"In an attempt to indicate its wide sweep, we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government, authority or a land owner is made an offence. Even innocuous speeches are prohibited by threat of punishment. There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section (sic). We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark, which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations were accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life. Unless there is a proximate connection between the instigation and the public order, the restriction, in our view, is neither reasonable nor is it in the interest of public order. In this view, we must strike down s. 3 of the Act as infringing the fundamental right guaranteed under Art. 19(1)(a) of the Constitution.

The Court here firmly recognizes the right to agitate and protest, while at the same time safeguarding the right to freedom of speech and expression by laying down the bar for when speech can be limited in the interests of public order. "

In Kedar Nath Singh vs. State of Bihar A.I.R. 1962 955, a Constitution Bench of the India Supreme Court observed that Section124A IPC was made in 1870 during British rule, but after the Constitution of India came into force in 1950 it must be given a narrow, and not literal interpretation, otherwise it will become unconstitutional.

For progress there must be freedom to think, freedom to discuss, freedom to express one's opinions (even if distasteful to the majority), freedom to criticize and freedom to dissent. An idea may be disagreeable to the majority, yet its expression should be permitted.

As pointed out by John Stuart Mill in his celebrated essay "On Liberty":

"All progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc. which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. In any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress.

The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e. majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that progress can take place."

In view of the above, I submit that mere demands and slogans for Azadi etc will not be crimes unless one goes further and (1) commits violence, or (2) organizes violence, or (3) incites imminent violence.

The JNU students and Amnesty did not commit or organize violence, and nor did they call for immediate resort to arms Hence in my opinion they committed no crime, and the charges against them should be dropped.

2. The demand for Azadi is misguided

The above points having been made, I totally disapprove of the demand for Azadi for Kashmir or any part of India for the following reasons:

(a) The test of every system is one, and only one: does it raise the standard of living of the people?Azadi can only be a means to an end, not an end in itself. The end must be raising the standard of living of Kashmiris. I have repeatedly said that if it can be demonstrated that Azadi results in raising the standard of living of the Kashmiri people -- creating large scale employment for the youth, providing for healthcare, tackling poverty, providing nutritious food, etc -- I will support the demand.

Mere demands and slogans for Azadi etc will not be crimes unless one goes further and (1) commits violence, or (2) organizes violence, or (3) incites imminent violence.

But it is certain that the Azadi being demanded by many Kashmiris will lower the standard of living of Kashmiris, leave alone raising it.

Azadi for Kashmir will result in Islamic revivalism, imposition of Sharia law in Kashmir, etc which will be disastrous as it will drive Kashmir into the dark ages. The mentor of the separatist leader and Chairman of the Hurriyat Conference, Syed Ali Shah Geelani was Abul Ala Maududi, who propagated Islamic revivalism and strongly opposed secularism and women's emancipation.

Geelani's ideology, and that of other separatists, appears to be the same. Otherwise why do they not disclose what is their plan for raising the standard of living of Kashmiris assuming Azadi is achieved? They are totally and deliberately silent about that.

(b) Kashmir is too small and economically backward to survive as an independent state. So, Azadi, even if it is achieved, will soon thereafter result in Kashmir coming under the Pakistani military jackboot and imposition of the feudal, outdated Sharia law and Wahhabism. We have all seen what is going on in Pakistan, and Kashmir will become a part of that.

Journalists who write independently are regularly killed. People are afraid of speaking out openly in Pakistan. Do Kashmiris want to be a part of that?

It is true that there is communalism in India too, but it is nothing compared to what is happening in Pakistan. Ahmadiyyas, Shias, Hindus, Christians, etc are regularly killed there by religious bigots. Recently a Hindu doctor was killed in Karachi. What was his fault? That he was a Hindu. Blasphemy laws are applied to victimize innocent minorities. Recently about 70 people were killed and over 100 injured in a bomb blast in a hospital in Quetta, many of them lawyers and journalists.

Journalists who write independently are regularly killed. People are afraid of speaking out openly in Pakistan. Do Kashmiris want to be a part of that? The demand for Azadi is totally reactionary.

(d) Kashmir has a large handicraft industry, and a huge market for it is in India. In almost every town in India there are shops of Kashmiris selling carpets, shawls and other handicraft items. When I went to Kovalam beach in Trivandrum, Kerala, I found three Kashmiri shops there. This huge market will be destroyed if Kashmir separates from India (because then Kashmiris will not be able to come into India without a visa, and such visas will be very difficult to get), and the workers and owners of these handicraft industries will become unemployed. Have Kashmiris and the JNU students ever thought of that?

(e) The Kashmiris working and studying in India will have to get out of this country.

(f) Some people talk of UN Resolutions. But these were passed a long time back, soon after independence in 1947 when our leaders were inexperienced and under tremendous pressure of powerful nations who had their own axes to grind. It is well known that the UN is dominated by powerful nations which have their own vested interests. Why should we bother about what happened so long back, and under pressure?

The worst thing in life is poverty. India must remain united (in fact I have repeatedly said that India, Pakistan and Bangladesh must reunite as the two-nation theory for Partition was bogus) because the only way to abolish poverty, unemployment and our other socio-economic ills is rapid industrialization. It is only then that we will be able to generate enough wealth for the welfare of our people. But for such a huge industry, we must have a huge market, because the goods produced have to be sold. Therefore, we must remain united if we are to escape from poverty and other social ills.

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